P.JYOTHIMANI,J.
These writ appeals are directed against the common order passed by the learned Single Judge dated 25.8.2008 made in W.P.Nos.13964, 13966, 13968 and 13969 of 2006, by which the learned Single Judge has dismissed the writ petitions filed by the appellants and three other persons.
2. According to the appellants/writ petitioners, they were appointed as Typist, Building Inspector, Building Inspector and Junior Assistant respectively in the second respondent/Municipality in the years 1990, 1991, 1990 and 1992 respectively and they were working continuously in the second respondent/Municipality without any break, but their services were not regularised.
3. The Government passed G.O.Ms.No.125, Municipal Administration and Water Supply Department, dated 27.5.1999 for regularising the services of NMRs, who have been working on consolidated pay initially and later brought under regular time scale of pay. The Government also passed G.O.Ms.No.21, Municipal Administration and Water Supply Department, dated 23.2.2006, directing the Local Bodies to regularise the services of NMRs working in Municipalities as on 1.10.1996 and to grant time scale of pay with effect from the date of the said Government Order.
4. It was the case of the writ petitioners that, pursuant to the said Government Order, the second respondent has issued orders regularising their services and they were brought into regular time scale of pay and according to them, they have joined in the regular posts. In spite of the said order passed by the second respondent dated 22.3.2006, the appellants were prevented from working in the regular vacancies, after their joining, and that has made the appellants to file the writ petitions to forbear the respondents from interfering with their functioning in the regular posts as per the order of the second respondent dated 22.3.2006.
5. It was the case of the second respondent that while G.O.Ms.No.125, Municipal Administration and Water Supply Department, dated 27.5.1999 was passed to regularise the services of NMRs other than Sanitary Workers, Drivers, Street Light Maintenance Workers and persons engaged in Drinking Water Supply of the Municipality, G.O.Ms.No.21, Municipal Administration and Water Supply Department, dated 23.2.2006 was issued to regularise the services of the workers on consolidated pay and NMRs on daily wages working in the Municipalities.
6. According to the second respondent, as per the said Government Order, such regularisation must be as against the sanctioned post which is available; such persons should confirm to the educational and other qualifications; and the expenditure of the Urban Local Body should not exceed 49% of the revenue after filling up the posts.
7. It was the case of the second respondent in the counter affidavit that the writ petitioners have not mentioned anywhere that they were in the rolls of NMR as on 1.10.1996 and therefore, they are not eligible for regularisation as per G.O.Ms.No.21, Municipal Administration and Water Supply Department, dated 23.2.2006.
8. It was the further case of the second respondent that the earlier order passed by the second respondent dated 22.3.2006, regularising the services of the writ petitioners, is not valid and a vigilance enquiry is being conducted and therefore, the said orders were kept in abeyance. It is also stated that, by regularising the services of the writ petitioners, the revenue of the Municipalities would constitute 69.31%, which is more than the financial viability made under G.O.Ms.No.21, Municipal Administration and Water Supply Department, dated 23.2.2006.
9. It is also further stated in the counter affidavit of the second respondent that the writ petitioners were not appointed in any of the service mentioned in G.O.Ms.No.125, Municipal Administration and Water Supply Department, dated 27.5.1999 and the conditions in G.O.Ms.No.21, Municipal Administration and Water Supply Department, dated 23.2.2006 were not complied with, more particularly as there has been no sanctioned post.
10. It was also the case of the second respondent that the said NMRs have unilaterally signed the attendance registers contrary to the office administration, which would amount to grave misconduct and the attendance registers were also seized by the Vigilance and Anti Corruption Department. Some of the officials, who were stated to have passed the said order, were stated to have been suspended.
11. The learned Single Judge, on the basis of a reading of G.O.Ms.No.21, Municipal Administration and Water Supply Department, dated 23.2.2006, while holding that the writ petitioners were appointed when there was no sanctioned post available; that there is no averment that the writ petitioners were in the rolls, which is a prerequisite condition for application of G.O.Ms.No.21, Municipal Administration and Water Supply Department, dated 23.2.2006; and that there has been some wrong committed by the earlier Commissioner of the second respondent/Municipality, about which a Vigilance and Anti Corruption case is pending, ultimately held that the order of regularisation of the writ petitioners dated 22.3.2006, passed by the second respondent, is not valid. The learned Single Judge has also held that the writ petitioners have unilaterally signed the attendance registers since 22.3.2006, which amounts to misconduct and also the revenue involvement is more than the permitted limit and, in that view of the matter, dismissed the writ petitions, as against which four of the writ petitioners have filed the present appeals.
12. It is true, as submitted by the learned counsel for the appellants, Mr.V.Selvaraj, that the other three writ petitioners, who have not filed writ appeals are also similarly situated.
13. It is the submission of the learned counsel for the appellants that the appointment of the seven persons, including the appellants, cannot be said to be invalid and as per the order of appointment, in fact regularisation, they have all joined duty. It is his submission that the said order of the second respondent dated 22.3.2006 was with regard to ten persons, including seven writ petitioners, and three persons, namely (i) V.Thangaraj, (ii) Mrs.Bernis Geetha, and (iii) A.Padma, who were not qualified and therefore, it was only in respect of the said three persons, a vigilance enquiry was initiated, apart from action against some of the officials of the second respondent and as far as the seven writ petitioners are concerned, they have been appointed in the second respondent/Municipality and were working even before the order of regularisation was passed.
14. The learned counsel has brought to the notice of this Court about the communication of the Regional Director of Municipalities, Tirunelveli addressed to the first respondent dated 24.8.2006, in which also it has been made very clear that the seven writ petitioners have been working as daily wage employees even prior to 1.10.1996 and therefore, they were entitled to regularisation as per G.O.Ms.No.21, Municipal Administration and Water Supply Department, dated 23.2.2006.
15. It is his further submission that even in the subsequent communication of the second respondent, addressed to the first respondent, made in November, 2007, the second respondent, while making reference about the seven writ petitioners, has clearly made out that the said posts were sanctioned posts and they have been working even before 1.10.1996 and therefore, recommended for regularisation of the services of the seven writ petitioners. Therefore, according to the learned counsel, even by the subsequent communications it is substantially made out that the writ petitioners appointment and regularisation on 22.3.2006 cannot be held to be invalid.
16. The learned counsel would also submit that the vigilance enquiry is not against the seven writ petitioners, by referring to some of the proceedings of the Municipality of the year 2008.
17. It is also his submission that the three persons out of the ten persons appointed as per the order of the second respondent dated 22.3.2006 also approached this Court and ultimately, in writ appeals, a Division Bench has directed the authorities to consider their case also. Therefore, according to him, the reason assigned by the learned Single Judge in dismissing the writ petitions is no more in existence.
18. On the other hand, it is the submission of the learned counsel for the second respondent/Municipality, Ms.V.Srimathi, that the writ petitioners were not MMRS and they were not appointed as against the sanctioned posts and therefore, G.O.Ms.No.21, Municipal Administration and Water Supply Department, dated 23.2.2006 would not apply and hence, the order of the second respondent originally passed on 22.3.2006 is not legally valid. She would also submit that G.O.Ms.No.125, Municipal Administration and Water Supply Department, dated 27.5.1999 also will not apply to the case of the writ petitioners. The appointment of the writ petitioners, according to her, is by mistake committed by the officials and that would not give any right to the writ petitioners to claim regularisation. She would also rely upon the judgments of the Supreme Court in Management, Assistant Salt Commissioner v. Secretary, Central Salt Mazdoor Union, [2008] 11 SCC 278 and Indian Drugs & Pharmaceuticals Limited v. Workmen, Indian Drugs & Pharmaceuticals Limited, [2007] 1 SCC 408.
19. The learned Special Government Pleader, who is appearing for the first respondent, while also arguing in the said line, would submit that the first respondent is not the appointing authority and it is only the second respondent and while making some appointments, the second respondent has committed grave error in the year 2006, about which a vigilance enquiry is pending, and therefore, according to him, the writ petitioners cannot claim any right under G.O.Ms.No.21, Municipal Administration and Water Supply Department, dated 23.2.2006.
20. It is seen that the second respondent, by his proceedings dated 22.3.2006, while referring to G.O.Ms.No.21, Municipal Administration and Water Supply Department, dated 23.2.2006 and based on the procedure to be followed as per the directives issued by the first respondent and having found that the ten persons, including the seven writ petitioners, were working in the Municipality even prior to 1.10.1996, has regularised them in their entry level post. The order relates to the following persons:
A.Subbulakshmi Typist (in the existing vacancy) Petitioner in W.P.No.13965 of 2006 (not filed appeal) 2 Santha Typist (in the place of Mrs.Pushpam to retire on 31.3.2006) Petitioner in W.P.No.13964 of 2006 (appellant in W.A.No.1198 of 2008) 3 Prabha Junior Assistant Petitioner in W.P.No.13969 of 2006 (appellant in W.A.No.1201 of 2008) 4 K.Ganapathy Junior Assistant Petitioner in W.P.No.13963 of 2006 (not filed appeal) 5 R.Maheswari Building Inspector Petitioner in W.P.No.13966 of 2006 (appellant in W.A.No.1199 of 2008) 6 R.Nagarajan Building Inspector Petitioner in W.P.No.13968 of 2006 (appellant in W.A.No.1200 of 2008) 7 I.Kannan Building Inspector Petitioner in W.P.No.13967 of 2006 (not filed appeal) 8 V.Thangaraj Junior Assistant (In the place of S.Mohamed Mustafa to retire on 31.3.2006) 9 Bernis Geetha Revenue Assistant 10 A.Padma Revenue Assistant
21. In addition to that, the proceedings of the second respondent dated 22.1.2006 reveals that the writ petitioners have been employed under the second respondent/Municipality in the years 1990, 1991, 1992, etc.
22. It is the case of the writ petitioners that, as per the order of the second respondent, they have joined in the regular post. However, it is true that on a writ petition filed by some other persons and as per the order of this Court dated 23.2.2006 ordering status-quo, the second respondent, by the proceedings dated 28.4.2006, has directed the earlier order stated above dated 22.3.2006 to be kept in abeyance and it was in those circumstances, the writ petitioners have filed the writ petitions.
23. The Government Order, which has been referred to by the second respondent, namely G.O.Ms.No.21, Municipal Administration and Water Supply Department, dated 23.2.2006, relates to regularisation of services of workers on consolidated pay and NMRS on daily wages working in the Municipalities and Corporations and Grade-III Municipalities, except Chennai Corporation. In the said Government Order, it is stated that the following vacancies in the Municipalities, Corporations and Grade-III Municipalities were available:
Name of post Municipalities and other Corporations Grade III Municipalities Street Light maintenance staff (Wiremen & Helper) 119 31 Sanitary Workers 2710 424 Water Supply Staff 358 161 Entry Level Posts (General) 2871 58 Total 6058 674
24. The Government Order enables to regularise such employees from the date of the said order, of course, subject to the conditions, namely (i) sanctioned post should be available; (ii) persons should fulfill all educational and other qualifications; and (iii) establishment (pay and pension) expenditure of the Urban Local Body should not exceed 49% of the revenue, after filling up the post.
25. It is the case of the writ petitioners that their appointment as Typist, Junior Assistant, etc., as stated above, is covered under the Entry Level Posts (General), for which there are 2871 vacancies.
26. The objection taken in respect of the appointment of the writ petitioners is that they have not been in employment of the second respondent/Municipality either as NMRs or daily wagers. The further objection is that there are no vacancies to regularise the services of the writ petitioners. Of course, the other objection was about the financial implications.
27. Under G.O.Ms.No.125, Municipal Administration and Water Supply Department, dated 27.5.1999, which relates to the regularisation of the services of the daily wagers workings in the municipalities, except those who are working as Street Light Maintenance Workers, Sanitary Workers and Drivers, others were directed to be regularised by preparing a list, as and when vacancies arise in the entry level post. The operative portion of the government order is as follows:
VERNACULAR (TAMIL) PORTION DELETED
28. In the light of the said Government Order, the contention of the counsel for the second respondent, as if the said Government Order applies only in respect of Sanitary Workers, Drivers and Street Light Maintenance Workers, is not acceptable.
29. As it is stated in the order dated 22.3.2006 of the second respondent, the petitioners were appointed as against the existing posts and they were qualified. Even if the said order has to be ignored, as the same has been deferred on the basis of an alleged vigilance enquiry, the present status of the said enquiry is not stated.
30. It is seen in the proceedings of the Regional Director of Municipalities, Tirunelveli addressed to the first respondent dated 24.8.2006 that all the seven writ petitioners were found to have been employed under the second respondent/Municipality prior to 1.10.1996, while the other three persons V.Thangaraj, Bernis Geetha and A.Padma were not employed before 1.10.1996. In fact, in the said report, the allegations made against the said writ petitioners, that they have unilaterally signed the attendance registers by joining report dated 29.3.2006, has been specifically found against, stating that the same was as per the oral direction of the Commissioner and other officials of the Department and therefore, there was no irregularity or disobedience or insubordination in their conduct. Ultimately, in the said proposal dated 24.8.2006, much after the original order of the second respondent, the Regional Director has recommended that the seven writ petitioners should be regularised before regularisation of the other three persons, in accordance with G.O.Ms.No.21, Municipal Administration and Water Supply Department, dated 23.2.2006.
31. Another clinching factor, which has not been taken into consideration by the learned Single Judge, while passing the order, is about the proceedings of the second respondent of November, 2007, addressed to the first respondent, wherein the second respondent sought permission to regularise the seven writ petitioners, stating that there are, in fact, seven vacancies available, namely, Typist (2 Vacancies), Junior Assistant (2 Vacancies) and Building Inspector (3 Vacancies). In the said letter of November, 2007, the present second respondent has also clearly stated that the seven writ petitioners have been working as daily wagers under the second respondent/Municipality prior to 1.10.1996 and sought direction from the first respondent to pass appropriate orders regarding the regularisation of the services of the seven writ petitioners. The relevant portion of the said letter reads as follows:
VERNACULAR (TAMIL) PORTION DELETED
32. In such view of the matter, it cannot be said as if the seven writ petitioners are not eligible for regularisation, either on the basis that they are lacking qualification or on the basis that such vacancies are not available. Mere pendency of vigilance enquiry cannot be a ground to deny the benefits to the said writ petitioners, if they are otherwise eligible. As we have stated, even as per the communications, which are subsequent and are of responsible officers, including the present second respondent, it is clear that the seven writ petitioners were in employment in the second respondent/Municipality prior to 1.10.1996 and the vacancies are available and therefore, it cannot be said, at least as on date, that there is no sanctioned post to enable the second respondent/Municipality to consider them to regularise in the said post. It is also not in dispute that the seven writ petitioners are working as daily wagers even as on date.
33. Another startling factor is that even the case of the other three persons, who are said to have no qualification or were not working in the second respondent/Municipality as on the cut-off date, were directed to be considered by a Division Bench of the Madurai High Court, by judgment dated 5.12.2006, in the appeals, viz., W.A.(MD) Nos.299, 301 and 303 of 2006, filed by the respondents herein. The operative portion of the judgment is as follows:
"Of course, the learned counsel for the appellants had brought to our notice of the Government Order in G.O.Ms.No.21, Municipal Administration and Water Supply Department, dated 23.2.2006. That Government Order was passed after the review of the earlier orders and after lifting the ban order. Of course, it is also directed in the said order that the regularisation of the employees shall be subject to (1) sanctioned posts should be available, (2) persons should fulfill all educational and other qualifications and (3) establishment (pay and pension) expenditure of the Urban Local Body should not exceed 49% of revenue after filling up of posts. By placing reliance on the above, the learned counsel for the appellants submitted that already the percentage of expenditure has gone beyond 49% and therefore, there is no scope for any more regularisation. Whatever be the submission of the learned counsel for the appellants as well as the respondents, in view of our direction, the same shall be considered only by the appellants. Further, it is made clear that while such consideration is made, the appellants have to give due weightage to the observation made in this order as to the employment of the respondents in the municipality for quite long number of years and their entire livelihood is depending only on the employment in question. The orders for consideration of regularisation shall be passed by the appellants within a period of two months from the date of receipt of a copy of this order."
34. On the factual matrix, as it is seen in the subsequent communications, referred to above, the judgment of the Hon'ble Apex Court in Management, Assistant Salt Commissioner v. Secretary, Central Salt Mazdoor Union, referred supra, relied upon by the learned counsel for the second respondent is not applicable to the facts and circumstances of this case.
35. For the same reason, namely that on facts it is clear that the writ petitioners were employed in the second respondent/Municipality before the cut-off date, as stated above, and as on date there are vacancies in respect of seven posts, the judgment of the Hon'ble Supreme Court in Indian Drugs & Pharmaceuticals Limited v. Workmen, Indian Drugs & Pharmaceuticals Limited, referred supra, is also not applicable.
36. Further, the relief claimed by the writ petitioners is only for a direction to forbear the respondents from interfering with the functioning of the writ petitioners in the post of Typist, Junior Assistant, etc., as per the proceedings of the second respondent dated 22.3.2006. It is true that by virtue of of the subsequent order, the above said order has been kept in abeyance and therefore, the writ petitioners were not regularised to the posts, as stated above, even though they are all working as daily wagers even as on today.
37. In such view of the matter, we are unable to subscribe to the reasons given by the learned Single Judge and accordingly, these writ appeals are allowed and the order of the learned Single Judge is set aside. The respondents are directed to consider the case of the writ petitioners for regularisation, in the light of the discussion made above and as per the terms of G.O.Ms.No.21, Municipal Administration and Water Supply Department, dated 23.2.2006, and pass appropriate orders within a period of eight weeks from the date of receipt of a copy of this judgment granting such benefits to them. However, the writ petitioners would be entitled to monetary and other benefits only from the date of such order, which may be passed by the respondents.
In the result, the writ appeals are allowed in the above terms. No costs. Consequently, M.P.No.1 of 2008 in W.A.No.1198 of 2008, M.P.Nos.1 and 2 of 2008 in W.A.No.1199 of 2008, M.P.Nos.1 and 2 of 2008 in W.A.No.1200 of 2008, M.P.Nos.1 and 2 of 2008 in W.A.No.1201 of 2008 are closed.
sasi To:
The Commissioner of Municipal Administration Chepauk, Chennai 5